Showing papers in "Buffalo Law Review in 2016"

Parental Parity: Intentional Parenthood's Promise

Abstract: Parental Parity begins a critical dialogue regarding the reformation of legal parentage. Scholars have been advocating for more than a decade that courts and legislatures eschew traditional status based parentage (e.g., birth and biology) in the context of parentage establishment when assisted reproductive technologies (“ARTs”) are used. Parental Parity sets forth a much bolder agenda: to use intentional parenthood as the default framework to establish all legal parent-child relationships at birth. Intentional parenthood is a superior parentage establishment doctrine because it appropriately captures who should and should not be a parent. It avoids the over and under inclusive problems of traditional status based parentage. Most importantly, intentional parenthood yields parental parity: the doctrine’s neutrality prevents inherent discrimination based on gender, sexual orientation, marital status, and class. While other scholars have written about the issue of intentional parenthood, no other scholar has specifically advocated for intentional parenthood as the default basis for establishing all parent-child relationships at birth. Parental Parity represents the culmination of my previous scholarship advocating against status-based parentage and sets forth a broader agenda and proposal to reform parenthood in the 21st century.

Special Economic Zones in the United States: From Colonial Charters, to Foreign-Trade Zones, toward USSEZs

Abstract: Special economic zones (SEZs) and the United States have a long and complicated relationship. The lineage of the United States runs back to proto-SEZs, created when Old World governments sold entrepreneurs charters to build for-profit colonies in the New World, such as Jamestown and New Amsterdam. In more recent times, though, the United States has lagged behind the rest of the world in tapping the potential of SEZs, which have exploded in number, types, territory, and population. True, the US hosts a large and growing number of Foreign-Trade Zones (FTZs), but these do little more than exempt select companies from federal customs obligations. Elsewhere, SEZs have done much more to increase jurisdictional competition and improve citizens' lives. Consider the SEZs that spread from Hong Kong throughout China, lifting tens of millions of people out of poverty in the process, or the huge private developments now taking root in Africa, Arabia, and India. This paper proposes that the United States combine the best of foreign and domestic policies to create a new generation of SEZs. These United States Special Economic Zones (USSEZs) would arise on federally owned property, such as lands managed by the Bureau of Land Management, and generate sorely needed public funds by liquidating the value of territorial exemptions from certain state and federal taxes, laws, and regulations. Through USSEZs, Americans might once more employ special jurisdictions to promote economic growth, human welfare, and individual freedom. Special Economic Zones in the United States: From Colonial Charters, to ForeignTrade Zones, Toward USSEZs

The birth of a legal economy: lawyers and the development of American commerce

Abstract: American lawyers helped lay the foundation for capitalism in the nineteenth century, playing a basic economic role in their legal practices earlier than other historians have documented. At a time when the U.S. state was relatively powerless, the work of the profession was essential. Lawyers helped generate liquidity before the federal government printed money, built legal institutions on the frontier, and made markets secure enough for their clients to participate. In short, they provided the private bureaucracy that capitalism needed to function. Until now, the foundational role of lawyers in early nineteenth-century economic life has largely remained hidden, partly because legal historians have depended on court documents and published works. This article uses legal account books to uncover the day-to-day work of the legal profession. Through studies of lawyers on the Ohio frontier and in New York City, it reveals that lawyers embraced the routine commercial work that allowed the market to function; they encouraged economic growth and cemented the profession’s place in American commercial life. Taking the routine work of lawyers seriously reveals that scholars have vastly understated the importance of the profession to economic development. Lawyers provided the constraints and built the institutions that economists and economic historians believe are key to growth. The profession must therefore be understood alongside the law as a defining part of the American economy.

Textiles: Popular Culture and the Law

Abstract: In October 1804, five women gathered in the New York City Mayor’s Court to argue over a homespun linen sheet. The case was initiated by Sarah Allingham, who filed charges against Judith Friel, a washerwoman, for stealing the sheet as well as some other bedding. Those charges, however, fail to capture the conflict’s complicated dynamics. Allingham claimed that Sally Riley had stolen the items nearly a year earlier, when she had been boarding with Allingham, and then later gave them to Friel, who knew them to be stolen, but would not return them. Allingham nursed her anger for months before she acted, waylaying Friel as she was leaving Rosannah Marara’s house, where Friel was picking up dirty laundry. Grabbing Friel’s bundle of wash, Allingham rummaged through it on the city street, certain that she would discover her property concealed within. On finding what she insisted was her sheet, Allingham then marched off with it to file charges. Her complaint not only brought Friel into court, but also cast doubt on Marara, who found herself justifying her own claims to the sheet. As Marara explained, she had purchased it from Sally Riley in the house of Margaret Barron earlier in the year, in the presence of Barron and another woman who lived in the neighborhood. Both women showed up to affirm Marara’s story, answering questions about the date (they remembered it was the previous winter because there was snow on the ground) and the nature of the purchase (a coarse, linen, homespun sheet priced at six shillings). The court accepted the women’s testimony in lieu of a written receipt as evidence of Marara’s claims to the sheet, which was the issue that seems to have determined the outcome of the case. Marara could prove

Uber for Lawyers: The Transformative Potential of a Sharing Economy Approach to the Delivery of Legal Services

Abstract: While many industries are facing challenges from new companies employing so-called “sharing economy” models of service delivery, those companies are bringing benefits to consumers while also operating at times in a legal vacuum, where the regulatory infrastructure seems incapable of responding adequately to the need for appropriate oversight that both encourages innovation but builds consumer trust and provides consumer protection. The legal profession, however, is an industry that has deployed features of sharing economy models for nearly the last two centuries, and, as a result, is an industry that has developed a sophisticated infrastructure for regulating actors within the industry deploying approaches that share sharing economy characteristics, although they have not leveraged new technologies the way sharing economy providers have done to date. Advances in the delivery of legal services are making a true sharing economy approach closer to reality, however. Indeed, a technology-enabled, sharing economy approach to the delivery of legal services, if instituted, could bring benefits to consumers seeking such services, while offering the consumer protections that regulation of the legal profession already has in place, sidestepping some of the consumer protection concerns the sharing economy raises. What this Article explores is whether a true sharing economy approach to the delivery of legal services — “Uber for Lawyers” — is a viable model for the legal profession. It attempts to address the ways in which new, technology-enabled organizations are changing the way in which legal services are being delivered in the United States, with a particular focus on LegalZoom, as well as a new model for the delivery of legal services that offers what I call “Just in Time/Just Enough Services.” Such an approach would (1) be situated within a sophisticated regulatory infrastructure that would encourage innovation while preserving consumer protection and (2) increase access to and affordability of legal services. It would open up new opportunities for lawyers to exercise their skills and practice their craft. Such an approach might therefore serve the ends of tapping into the latent market for legal services, increasing access to justice, and improving both lawyer job satisfaction as well as employment prospects.

Some Final Observations on Legal Intellectual History

Abstract: This has been an incredibly rich array of papers and themes. I am not going to try to sum up all the points that have been made and restate all the points into the form of motions that we could all vote on and adopt or reject. All I feel able to do is to provoke further discussion among us on top of the discussions we’ve had already. All I will try is just to identify a few themes that ran through our discussions.

A New Power?: Civil Offenses and Presidential Clemency

Abstract: The presidential pardon power is widely assumed to apply only to federal crimes—but not to civil offenses. No scholar, however, has ever carefully reviewed whether presidential clemency extends to civil offenses or explored the potential implications of this power. This Article provides the first-ever close study of whether presidential clemency is available for civil offenses. It concludes that presidents may pardon civil offenses—thus unearthing a new executive power, albeit one that has existed since 1787. The Article consults the various types of historical evidence that the Supreme Court has stated are most relevant to determining the scope of the pardon power: historical practices in England and the colonies, records from the Constitutional Convention, and English common law—as well as an array of other interpretive tools. The Article relies on the fact that “civil” offenses, as we now understand them, either were criminal offenses at the Founding or involved activities that went unpunished. In other words, there were no “civil” offenses (as we now know them) at the Founding; they arose only in the 1840s, as Felix Frankfurter memorialized in his 1925 article about the blurring lines between criminal and civil offenses. This Article shows, however, that the most analogous offenses prior to the advent of civil offenses could have been pardoned and were, in fact, pardoned by both presidents and English monarchs (whose acts of clemency the Supreme Court consults to assess the scope of the pardon power). In short, the various tools by which the Supreme Court assesses the breadth of the pardon power uniformly support the conclusion that civil offenses may be pardoned. The Article ends by launching a preliminary discussion of the uses and implications of this

Informed Consent for the Use and Storage of Residual Dried Blood Samples from State-Mandated Newborn Genetic Screening Programs

Abstract: Every year, approximately four million newborn infants have their blood collected and screened for metabolic and genetic disorders. The clinical and predictive value of many of these tests is uncertain, casting some doubt on the practical value of mandatory, non-consensual screening in general. Nevertheless, state health departments in the United States mandate newborn screening, and this practice is firmly rooted in the widespread belief that the benefits of screening for genetic disease in newborns significantly outweigh the costs. Newborn screening

Organic Poise: Capitalism as Law

Abstract: The “and” that has characterized multi- and inter-disciplinary legal scholarship over the last half century identifies law as, to some determinable extent, a system, structure, discourse, and/or field of its own, coupled with, hence cognitively open to, other such systems – economy, polity, society – but like them manifesting operative closure. Applying the conjunction to law and capitalism represents the two elements under inspection as phenomenally distinct. The application of systems theory seems quite appropriate to the determination of relations among different operative categories of action in any given society – law, economy, and so forth. But “capitalism” is not an operative category of action. It is an encompassing, holistic characterization of a particular type of society that is is both institutionally and ideationally specific. So, although the critique of functionalism is correct to disparage theories of lock-step operative responsiveness between one system (law) and another (economy), it is worth investigating to what extent, just as “‘medieval law looked, smelled, and acted medieval’ … capitalist law looks, smells, and acts capitalist.” Accepting this as a task for legal history, this paper offers preliminary thoughts on how that task might be conceptualized.

Humbug: Toward a legal history

Abstract: “Fraud is infinite.” So wrote Lord Hardwicke to Lord Kames in a 1759 letter, opining that courts of equity could not “lay down rules, how far they would go, and no farther” without finding their jurisdiction “cramped, and perpetually eluded by new schemes, which the fertility of man’s invention would contrive.” The words of this jurist acquired increasing currency in an era of dizzying commercial development, finding their way into nineteenth-century American as well as English legal discourse. They passed from Joseph Story’s Commentaries on Equity Jurisprudence into the decisional law of several states, which was recapitulated in treatises such as Melville Bigelow’s The Law of Fraud, perpetuating the notion that the law had to remain open-ended if fraudsters were to be brought to